Sh. Ved Parkash, Chandigarh V. ITO, Chandigarh

ITA 395/CHANDI/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2560 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: GAGANDEEP MONG A
• Keywords: Unexplained investment; Additional evidence
• Section: 131; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 395/CHD/2015 ASSESSMENT YEAR: 2011-12 SHRI VED PARKASH, VS THE ITO, R/O H.NO. 1846, WARD 5(4), VILLAGE : BURAIL, CHANDIGARH. SECTOR 45, CHANDIGARH. PAN: AKMPP5965H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAGANDEEP MONG A RESPONDENT BY : SHRI MANOJ MISHRA DATE OF HEARING : 11.01.2016 DATE OF PRONOUNCEMENT : 113.01.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-II CHANDIGARH DATED 23.01.2015 FOR ASSESSMENT YEAR 2011-12 CHALLENGING THE ADDITION OF RS. 93,18,372/- ON ACCOUNT OF UNEXPLAIN ED CASH DEPOSITS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER ASKED THE ASSESSEE ABOUT THE SOURCE OF CASH DEPOSIT OF RS. 93,18,372/- IN HIS BANK ACCOUNT. TH E CASE WAS FIXED BY THE ASSESSING OFFICER FOR HEARING ON 23.08.2012, 14.09.2012, 26.09.2012, 08.07.2013, 19.08.213, 07.01.2013 AND 13.01.2014, BUT NOBODY 2 ATTENDED ON THESE DATES. THE CASE WAS AGAIN FIXED FOR HEARING BY THE ASSESSING OFFICER ON 30.01.2014 ON W HICH DATE ASSESSEE FILED LEDGER, CASH BOOK, EXPENSES DET AILS AND THE CASE WAS ADJOURNED TO 04.02.2014 BUT NOBODY ATTENDED ON THIS DATE. THE ASSESSEE FINALLY ATTEND ED ON 10.02.2014 ON WHICH DATE THE ASSESSING OFFICER RECO RDED HIS STATEMENT UNDER SECTION 131 OF THE INCOME TAX A CT. AS THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE CASH DEPOSITS OF RS. 93,18,372/-, THE ASSESSING OFFICER MADE THE ADDITION ON THIS AMOUNT WITH THE FOLLOWING OBSERVATIONS : 'DURING THE STATEMENT, THE APPELLANT HAS ADMITTED T HAT HE DOES NOT OWN ANY SHOP OR GODOUNS AND DOES NOT HAVE ANY BILLS,, VOUCHERS OR OTHER DOCUMENTS REGARDING PURCH ASES AND SALES AND ALSO STATED THAT HE IS UNABLE TO PROV IDE THE ADDRESS OF THE PERSONS CONCERNS FROM WHOM HE HAS MA DE CLAIMS OF PURCHASES. THESE STATEMENTS ARE MADE PAR T OF THIS ORDER AS ANNEXURE-I, TO THE ORDER. IN RESPONSE TO Q UESTION NO. 6, THE APPELLANT WAS ASKED TO TELL THE BASIS OF PREPARATION OF ACCOUNT SUCH AS SALE BILL, PURCHASE BILL, DAY BOOK, GENERAL VOUCHERS, EXPENSES VOUCHER AND ASKED TO TELL THE PLACE WHERE THE SAME KEPT AND PRODUCE THE SAME. IN RESPONSE TO THE QUERY THE APPELLANT STATED THAT I D O NOT HAVE ANY PROOF OF ANY BILL VOUCHER, ALL THE DOCUMENT WER E PREPARED TO EXPLAIN THE CASH DEPOSITS IN THE SAVING BANK ACCOUNT THE APPELLANT WAS FURTHER ASKED VIDE QUESTI ON NO. 7 ABOUT THE NAME OF THE PARTIES AND THEIR COMPLETE AD DRESS FROM WHOM THE PURCHASES WERE MADE. IN RESPONSE TO T HE QUERY THE APPELLANT HAD SHOWN HIS INABILITY TO TELL THE ADDRESS AND WHEREABOUTS OF THE PARTIES. FROM THE AB OVE IT IS CLEAR THAT THE BOOKS OF ACCOUNT SUBMITTED BY THE APPELLANT ARE NOT GENUINE AND ARE PREPARED WITH A THOUGHT TO EXPLAIN THE CASH DEPOSITS IN THE BANK ACCOUNT. 3 IT HAS BEEN POINTED OUT TO THE APPELLANT THAT I N THE INCOME TAX RETURNS, THE GROSS RECEIPT HAS BE EN SHOWN AT RS.4,72,645/- AND EXPENSES OF RS.1,45,675/- WAS CLA IMED AND THEREBY SHOWN THE NET PRO/IT OF RS.3,26,970/-. IN RESPONSE TO THE QUERY THE APPELLANT STATED THAT THE TURNOVER MENTIONED IN THE INCOME TAX RETURN OF RS.4,72,645/- BY THE ACCOUNTANT CASUALLY. THE CONTENTION OF THE APPELLAN T IS NOT ACCEPTABLE AT ALL AS THE APPELLANT HIMSELF MADE THE VERIFICATION ON 01.06.2011 THAT PARTICULAR GIVEN IN THE RETURN AND THE SCHEDULES THERETO IS CORRECT AND COM PLETE AND THAT THE AMOUNT OF TOTAL INCOME AND PARTICULAR SHOWN THEREIN ARE TRULY STATED. MOREOVER THE BOOKS OF A/C S PRODUCED BY THE APPELLANT ARE NOT SUPPORTED WITH TH E BILLS OR VOUCHERS RATHER THESE ARE FABRICATED AND PREPARE D AS AN AFTERTHOUGHT. KEEPING IN VIEW THE ABOVE FACTS IT I S HELD THAT THE BOOKS OF A/CS PRODUCED BY THE APPELLANT ARE NOT GENUINE AND PREPARED WITH AN THOUGHT TO EXPLAIN THE CASH DE POSIT IN THE BANK ACCOUNT, IN THE ABSENCE ANY COGENT EXPLANA TION THE APPELLANT WAS OFFERED MANY OPPORTUNITIES TO EXP LAIN THE SOURCE OF DEPOSITS AMOUNTING TO RS.93,18,372/- WHIC H ARE MAINLY CASH DEPOSITS AND THE APPELLANT FAILED TO DI SCHARGE THIS ONUS TO TREATED AS UNEXPLAINED INVESTMENT OF T HE APPELLANT UNDER SECTION 69 IN THE BANK ACCOUNT MAIN TAINED BY THE APPELLANT. 3. THE ASSESSEE AGAIN DID NOT APPEAR BEFORE LD. CIT(APPEALS) THEREFORE, APPEAL OF THE ASSESSEE WAS DECIDED EX-PARTE AND APPEAL OF THE ASSESSEE WAS DISMISSED ON MERIT. THE FINDINGS OF LD. CIT(APPEAL S) IN PARA 5 AND 6 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 5. NO SUBMISSION HAS BEEN FILED IN THE APPELLATE PROCEEDINGS. THE APPELLANT HAD DEPOSITED MORE THAN RS. 93 LACS IN CASH IN HIS BANK ACCOUNT, BUT HAD SHOWN RECEIPT 4 OF ONLY RS, 4,72,645/- IN HIS INCOME TAX RETURN ON ACCOUNT OF BUSINESS ACTIVITY AND THE EXPLANATION OF THE APP ELLANT WAS THAT THIS TURNOVER WAS DECLARED BY THE ACCOUNTA NT CASUALLY. THE APPELLANT DOES NOT HAVE ANY SALE BILL S, PURCHASE BILLS, DAY BOOK, VOUCHERS ETC AND SO VERIF ICATION OF PURCHASE, SALE AND GENUINENESS OF EXPENSES IS NO T POSSIBLE. THE APPELLANT COULD NOT FURNISH EVEN THE NAMES OF THE PARTIES AND THEIR ADDRESSES FROM WHOM THE PURCHASES WERE MADE. NO EXPLANATION, WHATSOEVER, HA VE BEEN FILED EVEN IN THE APPELLATE PROCEEDINGS, IN TH E ABSENCE OF WHICH, I HAVE NO OPTION BUT TO CONFIRM T HE ADDITION MADE BY THE ASSESSING OFFICER, SINCE THE S OURCE OF CASH DEPOSITS IN THE BANK ACCOUNT REMAINS UNEXPL AINED AND IS TO BE TREATED AS UNEXPLAINED DEPOSIT U/S 69A OF THE; INCOME TAX ACT, 1961. GROUNDS OF APPEAL TAKEN BY TH E APPELLANT ARE DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED 4. THE ASSESSEE FILED THE PRESENT APPEAL IN THE OFF ICE OF THE TRIBUNAL ON 15.04.2015 AND THE APPEAL WAS FI XED FOR HEARING ON 13.08.2015. ON 13.08.2015, ASSESSEE 'S COUNSEL MADE A REQUEST FOR ADJOURNMENT ON THE GROUN D THAT DUE TO SOME UNAVOIDABLE CONDITIONS, THE ASSESS EE COULD NOT PROCURE THE REQUIRED DOCUMENTS THEREFORE, REQUEST FOR ADJOURNMENT WAS MADE. ON THE REQUEST O F ASSESSEE'S COUNSEL, APPEAL WAS ADJOURNED TO 03.11.2 015. ON 03.11.2015, THE ASSESSEE'S COUNSEL AGAIN MADE A REQUEST FOR ADJOURNMENT ON THE REASON THAT ARGUING COUNSEL WILL NOT BE AVAILABLE ON THE DATE OF HEARIN G, THEREFORE, ON THE REQUEST OF ASSESSEE'S COUNSEL, TH E APPEAL WAS ADJOURNED TO 11.01.2016. THE APPEAL WAS TAKEN UP FOR HEARING ON 11.01.2016 AND ON THIS DATE , 5 PROXY COUNSEL HAVING NO POWER OF ATTORNEY MADE REQU EST FOR ADJOURNMENT BECAUSE THE ARGUING COUNSEL WILL NO T BE AVAILABLE AS HE IS IN USA. HOWEVER, CONSIDERING TH E FACTS OF THE CASE AND BACKGROUND AND CONDUCT OF THE ASSESSEE AND THEIR COUNSEL EARLIER, REQUEST FOR ADJOURNMENT WAS FOUND UNNECESSARY. THIS CONDUCT EITHER SHOWS THAT THERE IS NOTHING IN THE APPEAL OR THAT THE ASSESSEE AND THEIR COUNSEL ARE NO LONGER INTERE STED IN PURSUING THIS APPEAL. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RAJESH KUMAR VS PROMILA & ORS. IN RSA NO. 494 OF 2011 VIDE JUDGEMENT DATED 27.04.2015 HELD AS UNDER: THE HIGH COURT IS NOT A CONVEYOR BELT OF REGULAR SECOND APPEALS SHUNTED FROM THE COURT ROOM TO THE STOREHOUSE FOR LISTING AND RELISTING AT THE ASKING OF SLUMBERING LITIGANTS WAKING UP TO SEEK UNNECESSARY ADJOURNMENTS, THEN DOZING OFF AGAIN AS THOUGH A GAM E OF CHESS IS BEING PLAYED OUT IN COURT WITH THE PLAY ERS MISSING. ENOUGH IS ENOUGH. THE REQUEST FOR ADJOURNMENT WAS ACCORDINGLY DECLINE D AND APPEAL WAS HEARD. THE PROXY COUNSEL COULD NOT CONTRIBUTE ANYTHING. 5. WE HAVE HEARD LD. DR AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. 6. THIS CASE WAS SELECTED FOR SCRUTINY BECAUSE THER E WAS AN AIR INFORMATION RECEIVED BY THE DEPARTMENT THAT ASSESSEE MADE HUGE CASH DEPOSIT IN HIS SAVING BANK ACCOUNT. THE ASSESSING OFFICER ISSUED SEVERAL STATUTORY NOTICES TO THE 6 ASSESSEE SEEKING EXPLANATION ABOUT SOURCE OF THE HU GE CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE BUT THE ASSESSEE DID NOT RESPOND TO THE STATUTORY NOTICES AND NO NOT ICES HAVE BEEN COMPLIED WITH. THE ASSESSING OFFICER EVEN CON SIDERING THE NON COOPERATIVE BEHAVIOUR OF THE ASSESSEE, LEVI ED THE PENALTY UNDER SECTION 2711)(B) OF THE INCOME TAX AC T IN A SUM OF RS. 10,000/-. EVEN THEREAFTER, THOUGH ONCE ASSESSEE APPEARED, BUT NO REQUISITE DETAILS HAVE BEEN FILED. THE ASSESSEE PRODUCED LEDGER ACCOUNT AND CASH BOOK BEFO RE ASSESSING OFFICER BUT SAME WERE NOT SUPPORTED BY AN Y DOCUMENT OR MATERIAL. THEREFORE, STATEMENT OF THE ASSESSEE WAS RECORDED BY ASSESSING OFFICER UNDER SECTION 131 OF THE ACT IN WHICH HE HAS ADMITTED THAT HE DOES NOT OWN A NY SHOP OR GODOWN AND DOES NOT HAVE ANY BILLS, VOUCHERS OR OTHER DOCUMENTS REGARDING PURCHASE AND SALES AND NO DETAI LS OF THE PARTIES WERE ALSO FURNISHED. HE HAS ADMITTED T HAT HE DID NOT HAVE ANY PROOF OF ANY BILLS, VOUCHERS OR OT HER DOCUMENTS. IN RESPONSE TO THE QUERY, HE HAS SUBMIT TED THAT DOCUMENTS WERE PREPARED TO EXPLAIN CASH DEPOSIT IN THE SAVING BANK ACCOUNT BUT NO DETAILS AND WHEREABOUTS OF THE PARTIES TO WHOM HE ALLEGED THE DEALINGS, WERE FURNI SHED BEFORE ASSESSING OFFICER. THEREFORE, BOOKS OF ACCO UNT PRODUCED BEFORE ASSESSING OFFICER WERE NOT FOUND GE NUINE AND IT WAS HELD THAT SAME WERE PREPARED AFTER-THOUG HT TO EXPLAIN CASH DEPOSIT IN THE BANK ACCOUNT. THE ASSE SSEE HAS SHOWN MEAGER RECEIPTS AND THEREFORE, COULD NOT EXPL AIN HUGE CASH DEPOSIT IN THE BANK ACCOUNT. THUS, DESPITE GI VING SEVERAL OPPORTUNITIES TO THE ASSESSEE AT ASSESSMENT STAGE, 7 ASSESSEE FAILED TO EXPLAIN SOURCE OF THE CASH DEPOS ITS IN THE BANK ACCOUNT BEFORE A.O. THE APPEAL WAS ONCE ADJOU RNED BY LD. CIT(APPEALS) ON THE REQUEST OF THE ASSESSEE BUT LATER ON THE ASSESSEE DID NOT APPEAR BEFORE LD. CIT(APPEA LS) NOR HIS COUNSEL APPEARED AND EVEN NO ADJOURNMENT WAS SO UGHT. THE LD. CIT(APPEALS), THEREFORE, CONFIRMED THE ADDI TION AND DISMISSED THE APPEAL OF THE ASSESSEE. 7. SAME IS THE POSITION BEFORE THE TRIBUNAL BECAUSE THE ASSESSEE'S COUNSEL EXCEPT SEEKING ADJOURNMENTS, DID NOT DO ANYTHING IN THE MATTER. NO PAPER BOOK OR EVIDENCE HAVE BEEN FILED BEFORE THE TRIBUNAL TO EXPLAIN THE SOURC E OF THE CASH DEPOSIT. NO REQUEST HAS ALSO BEEN MADE FOR AD MISSION OF ANY ADDITIONAL EVIDENCE. ADMITTEDLY, THE ASSESS EE DID NOT HAVE ANY EVIDENCE BEFORE THE AUTHORITIES BELOW TO E XPLAIN THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT. THE CONDUCT OF THE ASSESSEE AND HIS STATEMENT RECORDED BY THE ASSESSING OFFICER CLEARLY SUPPORT THE CASE OF THE R EVENUE THAT ASSESSEE FAILED TO EXPLAIN SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT. IN THE ABSENCE OF ANY EVIDENCE O R MATERIAL ON RECORD AND IN THE ABSENCE OF ANY SUBMIS SIONS TO CONTRADICT THE FINDINGS OF THE AUTHORITIES BELOW, W E ARE NOT INCLINED TO INTERFERE WITH THE ORDERS OF THE AUTHOR ITIES BELOW. SUFFICIENT OPPORTUNITIES HAVE BEEN GIVEN BY THE AUT HORITIES BELOW BUT ASSESSEE FAILED TO AVAIL THE SAME TO EXPL AIN THE CASH DEPOSIT. THEREFORE, AUTHORITIES BELOW WERE JU STIFIED IN MAKING AND CONFIRMING THE ADDITIONS AGAINST THE ASSESSEE. 8 WE, THEREFORE, DO NOT FIND MERIT IN THE APPEAL OF T HE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNES H SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH JANUARY, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD